UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4008

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
JOSEPH F. ETIENNE, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Chief
District Judge. (3:06-cr-00150-JRS-1)

Submitted:

July 18, 2007

Decided:

September 24, 2008

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Craig W. Sampson, BARNES LAW FIRM, Richmond, Virginia, for

Appellant.
Chuck Rosenberg, United States Attorney, Brian Lee
Whisler, Assistant United States Attorney, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Following a jury trial, Joseph Etienne was convicted of
conspiracy to commit health care fraud, in violation of 18 U.S.C.
1349 (2000), multiple counts of health care fraud, in violation
of 18 U.S.C. 1374, 2 (2000), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. 922(g)(1) (2000).
Etienne was sentenced to 120 months of imprisonment. On appeal, he
raises two issues.

For the following reasons, we affirm.

Etienne first asserts that the district court abused its

discretion by permitting a government agent (Agent Costen), who was
not sequestered as a witness, to testify regarding the 922(g)(1)
firearm charge after observing the testimony of another government
agent (Agent Gladwin) on that issue.

At the outset of the trial,

the court granted the Governments unopposed request to have both

Costen and Gladwin remain in the courtroom for trial, based on the
Governments assertion that only Gladwin would testify.

Gladwin

testified on direct examination that, during an interview of

Etienne

by

Costen

and

Gladwin

in

Etiennes

residence

contemporaneous with a search thereof, Gladwin confronted Etienne

with information that agents had found a gun in the residence.
According to Gladwin, Etienne responded by saying he forgot to
tell us that it was there, and that the gun was [his roommate]
LeVaughn Walkers grandfathers gun and that it had been given to
LeVaughn Walker.

J.A. 464.

Gladwin also testified that Etienne

- 2 -

took some breaks from the interview to make telephone calls, and
that Gladwin overheard Etiennes side of one such conversation with
Walkers mother, Celestine Green.

Gladwin testified that [w]hen

[Etienne] got on the phone, within like the first ten seconds, I
remember [him] saying, They found the gun.

Id. at 463.

When

challenged to do so on cross-examination, however, Gladwin could

not specify whether Etienne had said agents found the gun or a
gun.

Id. at 494.

Over Etiennes objection, the Government then

was permitted to call Costen to the stand.

The sole purpose of the

Governments examination of Costen was to establish that Etienne

had told Green during their telephone conversation that agents
found the gun.

J.A. 507.

The defense did not cross-examine

Costen, and the Government rested its case.

Thereafter, the

defense unsuccessfully moved to strike Costens testimony for

failure to sequester her.
Ordinarily, when Federal Rule of Evidence 615 (relating
to sequestration of witnesses) is invoked, the Government may be
permitted to have only one case agent in the courtroom during
trial.

United States v. Kosko, 870 F.2d 162, 164 (4th Cir. 1989)

(citing United States v. Farnham, 791 F.2d 331, 335 (4th Cir.
1986)).
and

[T]he sequestration of witnesses effectively discourages

exposes

fabrication,

inaccuracy,

and

collusion,

and

[s]crupulous adherence to [Rule 615] is particularly necessary in

those

cases

in

which

the

outcome

- 3 -

depends

on

the

relative

credibility of the parties witnesses.

Farnham, 791 F.2d at 335.

In Farnham,
we were willing to, in effect, presume prejudice where
the district court clearly violated the rule by allowing
both testifying government agents to remain in court
during each others testimony and where it would be
impossible for the defendant to prove that the second
agents testimony would have been different if he had not
heard the first agents testimony.
United States v. Harris, 39 F.3d 1262, 1268 (4th Cir. 1994) (citing
Farnham, 791 F.2d at 335).

Nevertheless, we recognized in Harris

that violations of Rule 615 are subject to the harmless error rule
and, thus, that an error in nonsequestration does not warrant per
se reversal if the circumstances of a particular case illustrate
clearly that the witnesss testimony had no substantial influence
on the verdict.

Id.

Even accepting that a violation of Rule 615 occurred here

(an issue that the Government disputes on the premise that the
trial court properly exercised its discretion), we conclude under
the circumstances presented that the district courts decision to
permit Costen to testify was harmless error.

That is, Etiennes

conviction under 922(g)(1) is supported by other substantial

evidence.

See Fed. R. Crim. P. 52(a); United States v. Ince, 21

F.3d 576, 583 (4th Cir. 1994).

For instance, Gladwin testified

that, when confronted during the interview with information about

the gun, Etienne indicated that he knew but forgot to tell agents
about the guns presence in his residence.

- 4 -

Furthermore, the gun

was found in a dresser along with business and banking documents

bearing

Etiennes

and

Walkers

names,

and

Etiennes

drivers

license and a yellow bracelet bearing his name were found nearby in
a cigar box.
Next, Etienne asserts that the district court erred in
refusing to give his proposed jury instruction.

We review the

decision to give, or not to give, a jury instruction and the

content of that instruction for an abuse of discretion.
States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995).

United

The district

courts refusal to grant a requested jury instruction is reversible

error only if the proffered instruction (1) was correct; (2) was
not substantially covered by the courts charge to the jury; and
(3) dealt with some point in the trial so important, that failure
to

give

the

requested

instruction

seriously

defendants ability to conduct his defense.

impaired

the

United States v.

Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks

omitted).

Etienne

has

not

met

the

above

requirements

for

reversible error, in that his requested jury instruction was

substantially

covered

by

the

courts

charge

to

the

jury.

Accordingly, we find that the district court did not abuse its
discretion in refusing Etiennes requested instruction.
For

the

reasons

convictions and sentence.

stated

herein,

we

affirm

Etiennes

We dispense with oral argument because

the facts and legal contentions are adequately presented in the

- 5 -

materials

before

the

court

and

argument

would

not

aid

the

decisional process.
AFFIRMED

- 6 -